Page images
PDF
EPUB

in the order, are to be the property of the client. The remuneration provided for by schedule 1 is not to include stamps, counsel's COMMUNICATION BETWEEN SOLICITOR fees, auctioneer's or valuer's charges, travelling expenses, search AND CLIENT IN PRESENCE OF A THIRD fees, or other reasonable and proper disbursements, nor extra

PERSON. work occasioned by the death or insolvency of a party, but it is to include stationer's charges, parchment, and copying. Where The doctrine that professional communications made to legal business is “ by special exertion carried through in an exceptionally advisers are confidential and privileged is well established in short space of time,” additional remuneration may be allowed to English law. Whether, however, the term “privileged comthe solicitor. A solicitor may accept from the client security for munication," often used in reference to this doctrine, is the best the amount to become due, and he may charge interest at four that could have been selected, is doubtful, when we consider that per cent. after the expiration of a montă from the demand upon the natural meaning of the words “privileged communication" the client.

is, that the subject matter of the communication is in itself privileged, not that the communication is one which may, or may

not, be privileged, according to the class of persons present when THE JUDGMENT of the House of Lords in Kinlock v. The it is made. This ambiguity in the term itself seems to have left Secretary of State for India in Council (30 W. R. 845) is the the exact limits of the operation of the rule as to privileged termination of a litigation which dates from the time of the communications somewhat undefined, and it is to the question Indian Mutiny. There are many barristers still in practice who what are the exact limits of this rule that we wish to direct were fortunate enough to hold briefs in the great Banda and

attention. Kirwee Booty case before the late Dr. LUSHINGTON in 1866. It Now one of the commonest things, indeed an every-day occur. may be remembered that an Order in Council had transferred to ence among the lower middle class, is for clients to consult their the Court of Admiralty the duty of ascertaining the persons solicitors in company with a friend. The presence of a third entitled to share in the property captured in the towns of Banda person seems to give them the courage needful for so formidable and Kirwee in 1857, and that Dr. LUSHINGTON decided in favour an interview. What is the position of this third person in regard of the personal representatives of Lord Clyde and his staff, and to “privileged communications"? He is present at the consultaof the officers and men under the command of Sir GEORGE tion, and becomes acquainted with all the points in the client's WHITLOCK. By a subsequent Royal Warrant her Majesty granted case. The client is protected from disclosing any communication to the Secretary of State for India for the time being all the made by him to his legal adviser, and his legal adviser is not booty captured at or in Banda and Kirwee, and its proceeds, “in permitted, save with his client's consent, to make known any such trust for the use of” all the persons interested, to whom it has communication. May the third person present at the interview, been adjudged by the Court of Admiralty, “such booty and in the character of a friend, disclose information thus obtained ? proceeds to be distributed by our Secretary of State for India in Is it a wholly “privileged communication," or is it a communicaCouncil for the time being, or by any other person or persons he tion privileged only as between solicitor and client strictly? may appoint.The plaintiff, who had been an Army chaplain Before we attempt to answer this question, let us state a case which attached to Sir G. WHITLOCK's column, sued the Secretary of recently came under our notice. State, alleging that a great part of the fund had not been dis- A testator who had made a valid will leaving all his property tributed, and that the accounts which had been furnished were to a brother, was near death, and desired to make another will, inaccurate. A demurrer to the statement of claim had been the village schoolmaster, A., and his son, B., were called in, and overruled by Vice-Chancellor Hall, but his judgment was a will leaving everything to D., a sister of the testator (who was reversed by the Court of Appeal. The plaintiff's counsel founded keeping house for him), was drawn up and executed. The his claim to relief upon the words of the Royal Warrant, as testator died, and D., accompanied by A., went to a neighbouring creating an express trust, and, therefore, rendering the Secretary solicitor to instruct him to obtain probate of the second will

. of State liable to account. The respondent's counsel were not The solicitor put certain questions to A., and, finding that the heard, and the Lord Chancellor went very fully into the question will had been irregularly attested, he declined to act in the of the trust. He first pointed to the circumstance that the Royal matter. Subsequently the brother of the testator brought to the Warrant had not described the then Secretary of State for India same solicitor the first will, and this having been properly by name, but merely as the Secretary of State “in Council,” and executed, the solicitor undertook to get it proved. Probate of the " for the time being," as negativing the presumption of a trust. first will was opposed, on the ground that it was revoked by a Again, the Court of Admiralty had determined only what classes subsequent will, and the action was remitted by the Probate of forces were to share in the booty, and in what proportions Court to the assizes for trial. On the trial of the action the inter se, the Crown having reserved to itself the question of the solicitor who was acting for the brother was called, and evidence scale of distribution among the respective ranks. The powers of what passed between him and D. and A. was objected to, on given by the Royal Warrant to the Secretary of State, and the ground of privilege. D. on being called swore that she was especially that of determining disputed claims, pointed to an in and out of the room at the time the will was executed, and did intention to make him an agent for the Crown rather than to not see it signed, but knew they were signing it; and as to what constitute him a trustee subject to the jurisdiction of the Chan- passed at the solicitor's office, she claimed privilege. B., the son cery Division. Lord O'Hagan pointed out that there was no of A., swore that the will was properly attested. A. swore the precedent for a court of equity assuming jurisdiction over such same, and on being cross-examined as to what passed at the a fund, that there was “no magic in the word 'trust,'” and that solicitor's office, counsel for D. claimed privilege. The judge was the fund must get out of the possession of the Crown before any inclined to think that there was privilege, and so ruled, but equitable jurisdiction could arise, but that the Royal Warrant did reserved the point at the request of counsel. It was never not involve any transfer of it. Lord BLACKBurn rested his cleared up, as the case was compromised. Here, then, we have decision upon the short point that the Secretary of State was a case where the whole issue depended upon the question of simply made an agent for the Crown to distribute the fund when privilege or no privilege. No doubt it is a case which can he was satisfied that the claims upon it were well founded. very seldom arise, but still it seems strange that the text-books

contain no reference to any single case bearing directly upon the presence of a third person present at an interview between

solicitor and client. From a parliamentary return issued this week it appears that the nun ber If, however, we may apply the rules of common sense to of persons imprisoned in Ireland under the Pro:ection Act on the 31st of July such a case, we should be inclined to say that, if a client wished last was 170. Of these 52 were confined in Kilmaiobam, 39 in Enniskillen, his communications with his solicitor to be secret, he should 32 in Galway, 21 in Dundalk, 14 in Nans, and 12 in Kilkenny Gaole. The take measures to secure their privacy. grea'er number of the prisoners are suspected of being guilty of murder ; 0' her to draw a distinction between such a case and that of a client

It seems difficult offences for which suspicion is entertained against the remainder being incita tion to murder, shooting and wounding, uclawful assembly, the posting of end saying something in a loud voice to his solicitor in court, so that sending of threateniog notices, intimidation, and arson.

it may be overheard by a dozen other people. And surely, if this

AMEND

BY

MEANS

OF

occurred, the mouths of a dozen people could not be stopped. acting on behalf of the owner or user, and“ if default is made in The only decision which seems to be at all near the case in point complying with the requirements” of the section prescribing it, is that of Fountain v. Young (6 Esp. 113), where it was held that the person in default is liable to a penalty of £20. We presume a communication made to one who was not a solicitor, under the that the maxim “ lex non cogit ad impossibilia” would come to the mistaken idea that he was one, was not privileged. Whether this aid of persons failing to comply with the requirements of the would be still considered to be good law is, perhaps, doubtful, but section through genuine inability to discover all the details, but if it goes rather far in declaring that privilege cannot

be extended no express provision is made for such a case, which justices would in cases of mistake, it seems, at any rate, to lay down the principle probably attempt to meet by the infliction of a nominal penalty, that the doctrine of privilege must not be carried beyond the strict whether legally recoverable, with costs, might perhaps be doubtful. limit of solicitor and client. At the same time there is, doubtless, This investigation is to be held locally" by a court consisting of much to be said in favour of the view that communications not less than two commissioners appointed by the Board, of whom between a client and his solicitor are absolutely privileged. one at least shall be a competent and practical engineer, specially But considering the doubt which exists in the matter, solicitors conversant with the manufacture and working of steam boilers, will do well to caution clients who consult them in company with and one a competent lawyer”—a constitution which was probably a friend, as to the possibility of danger in this respect,

for it may suggested by that of the Railway Commissioners under section 4 easily happen that matters disclosed in consultation should be of the Regulation of Railways Act, 1873. The court is armed made the foundation of purely vexatious litigation.

with very full powers of entry and inspection of places and documents, besides having "all the powers of a court of summary jurisdiction when acting as a court in the exercise of its ordinary

jurisdiction.” For these powers, reference would have to be LEGISLATION OF THE YEAR.

made to the Summary Jurisdiction Acts of 1848 and 1879, but the additional powers seem to be so sufficient and adequate that we

cannot imagine a case where reference would be necessary. A DOCUMENTARY EVIDENCE,

very important provision is that “the court may order (section 45 Vict. c. 9.–An Act TO

THE DOCUMENTARY 7) the costs and expenses of a preliminary inquiry or formal EVIDENCE ACT, 1868, AND OTHER ENACTMENTS RELATING investigation, or any part thereof, including therein the remunera, TO THE EVIDENCE OF DOCUMENTS

COPIES tion of persons holding such inquiry on investigation, to be paid PRINTED BY THE GOVERNMENT PRINTERS.

by any persons summoned before it, or by the Board of Trade," so

[19th June, 1882.] that it will be in the power of the court to mulct any person who The Documentary Evidence Act (31 & 32 Vict. c. 37), and many may be proved to be in default in a very beavy sum of money. other Acts applying it (see, for instance, the Elementary

Such are the main provisions of the stringent—if the Board of Education Act, 1870, 33 & 34 Vict. c. 75, s. 83, the Local Trade so please—“Boiler Explosions Act, 1882.” It remains to point Government Board Act, 1871, 34 & 35 Vict. c. 70, s. 5, and the out that, in event of death being caused by an explosion, an Prison Act, 1877, 40 & 41 Vict

. c. 21, s. 91) provide that regula- inquiry by the coroner will still be necessary, and that if there be tions and orders issued under the authority of the Treasury or

evidence of manslaughter by any person, there may be also an other public offices“ may be proved”-i.e.

, primâ facie evidence inquiry before justices, before a grand jury, and before a petty may be given of them—by production of copies purporting to be jury. There is no power even to shorten an investigation before

inter, Queen's printer, or a printer a coroner, however long the “ formal investigation ” might be, authorized by her Majesty." Private and local Acts of Parlia- and the same witnesses would almost certainly be required. liament also are, by virtue of the earlier 8 & 9 Vict. c. 113, This is inconvenient and unfortunate, and we would hope that the proveable by Queen's printer's copies. The present Act, which next statute of a similar kind will provide for the case. is to be called the “ Documentary Evidence Act, 1882,” has merely the effect of reading into all such Acts of Parliament the

HIGHWAY RATES. words “ Stationery Office" in addition to the words “ Government printer.” or the like, “whatever may be the precise expression 45 & 46 Vict. c. 27.–An Act to EXTEND CERTAIN PROVISIONS used " in the particular Act. All documents, therefore, printed

OF THE POOR RATE ASSESSMENT AND COLLECTION Act, 1869, under the superintendence of the Stationery Office are henceforth,

TO THE HIGHWAY RATE, AND FOR OTHER PURPOSES. by virtue of this Act, receivable in evidence. The Act applies

[12th July, 1882.] to Ireland, and also extends the Act of 1868 to Ireland.

Of all the minor Acts passed in the late session, this one, which

bears the short title of “The Highway Rate Assessment and BOILER EXPLOSIONS.

Expenditure Act, 1882," will require the most careful study. It 45 & 46 Vict. c. 22.-An Act TO MAKE BETTER PROVISION FOR present features of some little difficulty, owing to the incorpora

contains ten sections only, but each of them will be found to INQUIRIES WITH REGARD TO BOILER EXPLOSIONS.

tion by reference of other statutes, the difficulty of fusing [12th July, 1882.]

Highway with Poor Law Acts, and the general complexity of the This Act is to a certain extent modelled upon corresponding subject. We will deal with the sections in their order. Section provisions in the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 3 applies the provisions of the Act of 1869, as to composition with 104), s. 326, and the Regulation of Railways Act, 1871 (34 & 35 owners of small tenements, to highway rates, and it is noticeable Vict. c. 48), s. 6, et seq., but it goes far beyond those provisions that the principle of composition was introduced into rating for in minuteness of detail. The scheme of the statute which does not highway purposes by local Acts anterior to the Highway Act, apply to certificated steamships, or mines, or boilers used exclu- 1835, as appears from the concluding portion of the section sively for domestic purposes is that notice of every boiler explo- which repeals section 30 of that Act relating to the comsion—that is, of the explosion of “any closed vessel used for position for rates under local Acts. By section 4 the “valuagenerating steam, or for heating water, or for heating other liquids, tion list" (see Union Assessment Committee Act, 1862— or into which steam is admitted for heating, steaming, boiling, or 25 & 26 Vict. c. 103), is made conclusive for the purother similar purposes "—is to be sent to the Board of Trade, and poses of the highway rate. Section 5 provides for the recovery by that the Board of Trade, either upon or without a preliminary an outgoing surveyor from his successor of moneys

be inquiry, may or may not, in their absolute discretion, direct à due to him for expenditure lawfully incurred, but which the rate “ formal investigation" of the causes and circumstances attending levied in his own term of office has proved insufficient to meet. the explosion. This notice, which is to be sent within twenty- This is surely in affirmance of the common law, but we know of four hours of the explosion, is to state very definitely the place no authority' bearing on the point. The section, we presume, and time of the explosion, the number of persons injured or would receive a very liberal construction. The great milestone killed, “and generally the part of the boiler which failed,” with grievance is next dealt with by section 6, by legalizing the erec

such other particulars, if any, as the Board of Trade may tion or repair of these useful little structures in a mode and require.” It is to be sent by the owner or user, or the person manner which we have already criticized. Section 7 subjects

which may

the accounts of “waywardens” to the supervision of the with grass growing at the sides. It had at the time of the action a cindered Poor Law, or to speak' more correctly the district, auditor. By

footpath along the whole of both sides, except for a very short portion on the section 8 all the provisions of the Poor Law (see Poor Law Audit westerly side. The footpath on the

easterly side was made by the board in

1880 ; that on the westerly side in 1881. New Lape was repaired by the board Act, 1848–11 & 12 Vict. c. 91, s. 9) as to the recovery of as a highway repairable by the inhabitants at large. In 1876 and 1877 the “moneys, goods, or chattels certified at the audit of the poor rate board made a sewer along the roadway, and in 1880 they channelled and accounts,” are applied to the cases of “moneys, &c., certified by payed it along the whole length and width. The population of the district an auditor at a highway audit to be due from any person."

had increased in the last ten years from 15,126 to 21,785, and the number of

houses from 3,205 to 4,057. On the west side of New Lane were twenty houses, Section 9 applies only to the peculiar case where a “part of a some detached, others standing two, three, or four together. Of the land on parish is excluded from an urban sanitary district," and gives the west side not actually built on several plots besides the plaintiff's had power to the owners and ratepayers therein to decide “in manner been let for building purpose". On the east side there were sixty-seven houses, provided by schedule three of the Public Health Act, 1875," including a row of twelve

cottages in course of erection, another row of sixteen that the excluded part shall be a “highway parish,” where- nine cottages, and another row of four cottages. Other land on the east side

cottages, & row of pine houses, another row of eight houses, another row of upon “if the resolution is approved by an order of the Local had been let for building purposes. The board in 1871 made some bye-laws as Government Board,” such excluded part is to be, for all to the level, width, and construction of new streets,” and these bye-laws highway purposes, “ considered and treated as a separate highway these bye-laws provided that every new street shall be laid out and formed of parish.' Lastly, section 10, the interpretation clause, defines such width and at such level as the board shall in each caso determine." * highway audit,” “ highway parish,” and other expressions ; By-law 36 required that every person should, before beginning to make or lay defining , highway parish ” as a place separately maintaining its out any new etreet, give a month's notice in writing of his

intention to the own highways, and, in a highway district (see as to formation of board, and should leave with their surveyor certain

plans and sections. Bye

. highway districts, section 5, et seq., of the Highway Act, 1862), intend to erect any new building. Bye-law 42 provided that the board should a place for which a waywarden may be elected or a separate high- approve or disapprove any proposed new works or buildings within the time way rate be made."

specified, and that the owner or person intending to orect any new street or build. ing should give the notices thereby required, and that, if any owner or person should construct any works contrary to the provisious therein contained, the board, after calling on such owner or person to show cause, might, if they

should think fit, have such works removed, altered. or pulled down, as the CORRESPONDENCE.

case might require. The plaintiff gave notice to the board of his intention to erect new buildings on bis land, and left plans and sections at their office,

showing the intended building line of bis proposed new buildings. The board dis. INTERPRETATION OF “LAND” IN THE CONVEYANCING approved the proposed new buildings, on the ground that the houses would АСТ. ,

contravene the building line, and would be built within the line of the [To the Editor of the Solicitors' Journal.]

existing buildings on that side of the street, and they required the proposed

building line to be thrown further back about ten yards from the roadway of Sir,--In an article in your number of the 15th ult., headed “Are New Lane. The plaintiff commenced to build according to his plans, and the leaseholds within section 18 of the Conveyancing Act ?" it is maintained board called on him to show cause why his works should not be removed. that the interpretation given by the Act to the word "land" is insufi- The plaintiff disputed the right of the board to disapprove of his plans on the cient to embrace leaseholds for years.

ground that his intended building line was too near the roadway, or to pull I will not here follow the reasoning by which this result is reached, down his new buildings if erected in accordance with his plans. The action was but will simply call your attention to the construction put upon similar brought to restrain the board from doing what they proposed to do, and a words in the Statute of Frauds.

special case was then stated for the opinion of the court, raising the question The words in the 7th section of the Statute of Frauds are “lands, whether the board were entitled to disapprove of the plaintiff's new buildings

whetber New Lane was a new street" within the meaning of the Acts, and tenements, or hereditaments." Those of the interpretation clause referred to, omitting words of amplification, are "land, : . . tenements, the term “new street” in the Acts applied only to a street constructed for

the ground stated, or to pull them down. Fry, J., held that and hereditaments." It is too well settled to need reference to cases the first time out of grass land or other vacant land, and not to an old that the 7th section of the Statute of Frauds includes leaseholds for country road in the neighbourhood of a town, which, by the building of houses years. It seems to me to follow that the same construction must be on each side of it, had become, or was gradually becoming, a street, and put upon the words of the interpretation clause of the Conveyancing Act. tbat New Lane was not a "new street," and therefore the board had ng power I may add that I am aware of nothing in the Statute of Frauds beyond to disapprove or to pull dowu the plaintiff's new buildings. The Court of the words I have quoted to influence the construction I have mentioned ; Appeal (Jessel, M.R., and Brett and Cotton, L.JJ.) reversed this decision. on the contrary, the use of the word “ couveyance" only, in the 8th Jessel, M.R., said that the Act was fairly open to more than one construe. section, might be supposed rather to point in the contrary direction,

tion. The case was a very difficult one, and was fairly open to a difference of Temple, Aug. 15.

A. J. Wood.

opinion ; but regard must be bad to what must be presumed to have been the intention of the Legislatore. The intention must have been to give to a local authority the power of regulating the laying out of new streets- power to be exercised for the public benefit. What was the meaning of the term “new

street"? His lordship should say it meant a street where there was no street CASES OF LAST WEEK.

before, though it might include more. This might take place in one of two ways. A street might be made out of a grass field, and, in bis lordship's view,

it would make no difference whether or not an old country lane or road was tbrowa POWERS OF LOCAL BOARD—"New STREET "-LOCAL GOVERNMENT ACT, into it. In such a case as this a person who designed to build bouses along, 1858, s. 34—PUBLIC HEALTH Act, 1875, s. 157.-In a case of Robinson v. the street was to build them in a particular way and subject to the by-laws of The Local Board for Barton, before the Court of Appeal on the 7th inst., a the board. But then there was another case, where the street was not laid question arose as to the powers of local boards with regard to “ now streets". out in a formal way, but, so to speak, grew of itself, When did it become a viz., what is the meaning of the term “new streets" in the Local Government street ? At some time or other it must do so. But when ? You could not Act of 1858 and the Public Health Act of 1875. Section 34 of the tell nnless you knew the locality. It was & question of fact in each case. Act of 1858 provides that, “Every local board may make bye-laws with Section 157 of the Act of 1875 plainly empowered the board to make bye-laws respect to the following matters (inter alia) (1) with respect to the level, before the street was made, and the moment the street became a "new street" width, and construction of new streets, and provisions for the sewerage through." it was su bject to the bye-laws. Upon the facts of the present case his lord: Section 157 of the Act of 1875 gives the same powers “to every urban ship thought there could be no doubt that New Lane was a "new street." authority." Section 2 of the Public Health Act of 1848 (with which, by it was a very young street indeed. The bard had in substance called section 4 of the Act of 1858, the latter Act is to be construed) provides that on the plaintiff to build the street of a certain width. He was laging " the word "street' shall apply to and include any highway (not being a tarn- out a sinew street,” building a continuous line of houses. His lord pike road), and any road, public bridge (not being a county ship was satisfied that the defendants were acting withia their powers, bridge), lane, footway, 'square, court, alley, passage, whether a thoroughfare BRETT, L.J., said that the construction of the Act and the bye-laws, and or not, and the parts of any such highway, road, bridge, lane, footway, square, their application to this particular case, was a matter of extreme difficulty. court, alley, or passage within the limits of any district." Section 4 of the Act The Act dealt with two totally different kinds of streets—one which no one, of 1875 contains a similar definition of the word “street.” There was at without an Act of Parliament, would have called a street; the other which no Eccles, within the district of the defendant board, a public bighway called New. one, without the Act, would have donbted was a street. Could you, by lane, which had existed for many years. It was 885 yards in length, running altering a street of the one kind into a street of the other kind, make it & in a direction nearly north and south. The plaintiff had agreed to take a lease “new street"? It would be substantially altered, and it would certainly be for a long term of a plot of land on the west side of Now Lane for building new. His lordship thought that that which everybody would have called a purposes. Fifty years ago Eccles was a small country village, but at the time street could be altered into a new street—e.g., an old narrow street in a town, of the action it was a kind of euburb to Manchester. New Lane was not a if it was widened, would become a "new street." It was clear that New turnpike road; it was formerly a country lane, with no well-defined footways, Lane was a street now without the aid of any interpretation clause in the Act. and it was usually repaired by having cinders thrown opon it. The board Was it a "new street”? It was said it was not, because, by virtue of the had repaired it since the date of their formation, about the year 1850. Until interpretation clause of the Act, it had been a "street" ever since the first the last ten years it was a cinder roadway, with no well-defined footways, and Act was passed. But if it was altered into a totally different kind of street,

on

[ocr errors]

it was a

“new street.” That term in the Act must have & very elastic was entered into between the railway company and the Great Western Railmeaning. The question was, When did the street begin to be a "new street" ? way Company for the working of the Cornwall line by the latter company, When did it change its character ? If the land on both sides belonged to one and it was part of this agreement that rolling-stock of the wagon company to owner, and he had a plan for laying it out for building, he would begin to the amount of £40,000 should be handed over to the Great Western Company lay out a new street when he built the first house, having the intention of to enable them to work the line. But it was also agreed that if the Great going on building. If the land belonged to a number of owners, no one of Western were called on to pay anything for the wagons they should deduct it them could make a plan for the others. But each might be intending to build from the rent which they were to pay for tbe line. Part of the rolling-stock with regard to a particular roadway, and each would be laying out a was not taken by the Great Western Company, and some of that part was sold street" with reference to what he was doing himself. He who begin first by the Cornwall Company, and the porcbage-money was in court. The rest of would be first laying out a "new street," there being a common intention, or the rolling-stock was set by the Cornwall Company to another company, and design, to build. There might, of course, be cases in which no one could another sum in court was rent paid by the last-mentioned company. A third say there was any common intention of building, where only one owner of sum in court represented rent paid by the Great Western Company. Afterland bad shown his intention. In such cases the street formed itself by suc- wards a receiver of the Cornwall Company's undertaking was appointed, ani cessive acts, without any common intent. It grew of itself. In the present under this receivership the moneys came into court. The wagon company case it was obvious that all the landowners had an intention of building.claimed to be paid out of these moneys the rent which was due to them, and Some time ago New Lane began to be a street, and not so long ago as to Kay, J., granted tbe application. A debenture holder, who had taken his prevent its being a "new street.” Then the board had made bye-laws, and his debentures subsequently to the agreement between the Cornwall Company lordship, did not see anything to prevent them from determining in the case and the wagon company, appealed. The Court of Appeal (JESSEL, M.R., of each house how it should form part of the street—i.e., how far it should he and BRETT and COTTON, L.JJ.) affirmed the decision. Jessel, M.R., said set forward or backward. It was said that if they could do this they could that, whatever might be the legal ghts of the appellant, what was his moral act capriciously as to the width of the street. But the Legislature bad given position ? He wished to take away the money which had been earned by the them the power. If they acted dishonestly, no doubt the law was strong use of the wagons belonging to the wagon company, without paying them the enough to control them. But, so long as they were acting bonestly, they hire of their wagons. If he bad a legal right to do this, of course he could do had power to determine the width of the street at each particular point. His it. The legal right depended on the Railway Companies Act of 1867. The lordship thought that the defendants were acting within their powers. appellant said that section 23 of that Act gave him a right to payment in COTTON, L.J., thought that the construction of the Aet was very difficult, but priority to claims on account of any debts of the company. But, whatever he had arrived at the same conclusion. The questions were, whether the that section might mean, and whatever charge or preference was thereby given Board had power to make bye-laws, and whether they had done so. In to debenture-holders, it was subject to the provisions of section 4. The ordioary parlance, there could be no doubt that New Lane was a street, or moment a receiver was appointed all rights became subject to those provisions. that, four or five years ago, it was not a street but a country lano, and in Whatever right or priority, therefore, the appellant had, it was subject to the common parlance it was a "new street." The ordinary parlance was not provisions of section 4. What was the meaning of working expenses" ? excloded by the interpretation clause of the Act, which was intended to His lordship had not the slightest hesitation in saying that it must include include that which, in ordinary parlance, would not be a street. SOLICITORS, rent for the rolling-stock used in working the line, and, if that rent was not a Le Riche & Son; Byrne & Lucas.

working expense,” it must certainly be a proper outgoing. Kay, J., had,

therefore, decided rightly. BRETT aod Cotton, L.JJ., concurred.-SOLIPRACTICE_SPECIALLY-INDORSED WRIT-LEAVE TO DBFEND-COUNTER- & Stirling ; Norton, Rose, & Co; Cope & Co.

CITORS, Maples, Teesdale, & Co; Singleton & Tattershall; Murray, Hutchins, CLAIM-ORD. 14, R. 1.-In a case of The Zoedone Company v. Barrett, before the Court of Appeal on the 8th inst., a question arose as to giving leave to defend an action in which the writ was specially indorged under order 14. BANKRUPTCY-PROTECTED TRANSACTION-NOTICE OF ACT OF BANKRUPTCY The defendant alleged that he had a defence wbich was really in the pature AVAILABLE FOR ADJUDICATION "_FAILURE TO COMPLY WITH Debtor's of a counter-claim. Jessel, M.R., said that it was not intended that on SUMMONS-BANKRUPTCY Act, 1869, ss. 6, 94.-In a case of Hood v. Newby, applications of this kind the court should try the action. There might be before the Court of Appeal on the 4th inst., a question arose, apparently for no defence to the action, but the court might think tbat sach facts were the first time, on the construction of section 94 of the Bankruptcy Act, 1869. disolosed as were sufficient to entitle the defendant to be permitted to That section protects " any contract or dealing with any bankrupt made in defend the action. As Lord Blackburn said in Wallingford v. "The Mutual good faith and for valuable consideration, before the date of the order of adSociety (L. R. 5 App. Cas. 704, 29 W. R. 81), “there may very well be judication, by a person not having, at the time of making such contract or facts brought before the judge which satisfy him that it is reasonable, some dealing, notice of any act of bankruptcy committed by the bankrupt and availtimes without any terms and sometimes with terms, that the defendant able against him for adjudication.' The question was whether notice of an should be able to raise this question, and fight it it'he pleases, although act of bankruptcy committed by the failure of a debtor to comply with a the judge is, by no means satisfied that it does amount to a defence upon debtor's summons, the debtor being afterwards adjudicated a bankrupt on the the merits.” In the present case his lordship said that, before he could be petition of a creditor who did not issue the summons, is sufficient to deprive satisfied that there was no defence on the merits, he shonld have to try the creditor who receives the notice of the protection of section 94i.e., whether, several questions, all of which were ecoceptible of fair argument, Tbe in fact, the notice must be of an act of bankruptcy "available" for the divisional coort was right in saying that this was not a case for entering making of the particular adjudication which is, in fact, made. By section 6 of judgment under order 14. COTTON, L.J., said that for the purpose of such the Act it is provided that a bankruptcy petition founded on an act of bankan application as this a counter-claim was a defence, though the refusal of roptcy committed by non-compliance with a debtor's sommons can be preleave to defend would not prevent the defendant from setting up his clair

sented only by the creditor who has issued the summons. In the present case in a separate action. Still, for this purpose, & ground of counter-olaim

the trustee in the bankraptcy of the defendant claimed to set aside an ought to be treated as a defence. An application ander order 14 was not agreement between him and the plaintiff, which was entered into at a time meant to be the means of determining brevi manu questions which onght to when the plaintiff

had notice of an act of bankruptcy committed by the defendbe argued at the trial, where the defendunt showed a bona fide intention of apt in failing to comply

with a debtor's summons issued by the plaintiff himself

, raising these questions there.—SOLICITORS, F. Heritage di Co.; Coode, been made on the petition of another creditor who had issued a second

the adjudication not having proceeded on that act of bankruptcy, but having Kingdom, f Cotton.

debtor's summons, which had not been complied with by the bankrupt.

Cbitty, J., held that the notice must be of an act of bankruptcy available for RAILWAY COMPANY-DEBENTURE HOLDERS PRIORITY-RECEIVER-PAY. the makiog of the adjudication actually made, and therefore decided against MENT OF WORKING EXPENSES AND PROPER OUTGOINGS—RAILWAY COM- the claim of the trustee. The Court of Appeal (JESSEL, M. R., and Brett PANIES Act, 1867 (30 & 31 Vict. c. 127), ss. 4, 23.-In a case of In re The and Cotton, L.JJ.) held, on the contrary, that notice of an act of bankruptcy Cornwall Minerals Railway Company, before the Court of Appeal on the 4th available at the time when the actual adjudication was made, for the making inst., a question arose upon the construction of sections 4 and 23 of the Rail- of any adjudication was sufficient to deprive the creditor who received the way Companies Act, 1867. Section 4 provides that, on the appointment of a notice of the protection. On the one side reliance was placed on the dicta of receiver or manager of the undertaking of a company, "all money received by James, Baggallay, and Thesiger, L.JJ., in Ex parte Crosbie (26 W. R. 119, such receiver or manager shall, after due provision for the working expenses L. R. 7 Cb. D. 123), that the notice must be of an act bankruptcy "which of the railway and other 'proper outgoings in respect of the undertaking, would have been available for the making of the particular adjudication-i.e.; be applied and distributed under the direction of the court in payment of the any act of bankruptcy upon which the adjudication might have proceeded.' debts of the company and otherwise, according to the rights and priorities of On the other hand, reliance was placed on the dicta of James and Mellish, L.JJ., the persons for the time being interested therein." Section 23 provides in Ex parte Hankin (23 W. R. 401, L. R. 10 Ch. 267), that “no distinction that, with certain exceptions (such as rent.charges and claims for land taken is made in section 94 between an act of bankruptcy under a debtor's summons for the purposes of the railway or injuriously affected by the construction and any other act of bankruptcy.” In neither of these cases, however, did the thereof), all money borrowed or to be borrowed by a company on mortgage, point now raised arise. Jessel, M.R., said that the question was whether or bond, or debenture stock under the provisions of any Act authorizing the the transaction in question was protected by the 94th section, which said borrowing thereof, shall have priority against the company, and the property that a transaction could be protected only in favour of a creditor who had from time to time of the company, over all other claims on account of any no notice of any act of bankruptcy "available for adjudication.". Now, debts incurred or engagements entered into by them after the passing of this certainly at the time when tbis contract was made the creditor had notice Act.” In the present case the Cornwall Minerals Railway Company sold of the first debtor's summons, for he had taken it out himself. But was their rolling stock to a company called the Yorksbire Railway Wagon Com. that an act of bankruptcy available for adjudication within the secpany, and afterwards the wagon company let it on hire to the railway tion ? He thought it was. The section did not say "available on the company. The bona fides of this arrangement was impeached, but the Court petition of every creditor.” It was sufficient that it was available on the of Appeal decided that it was a bona fide transaction (vide The Yorkshire petition of some creditor. The only other question was at what time the Railway Wagon Company v. Maclure, ante, p. 434). The railway company act of bankruptcy must bave been available--at the date of contract or at the were thus in possession of a large quantity of rolling-stock belonging to the date of the adjuication and the court had already decided that it meant at wagon company, for which they had agreed to pay rent. Then an agreement I the date of the adjudication. That being so, it was plain that, according 10

the natural meaning of the section, this contract was not protected. Then were there any authorities binding on the court, which prevented it from CASES BEFORE THE VACATION JUDGE. coming to this decision ? He was of opinion that, although some of the words used by the judges in previous cases were very general, this point was not then before them, and that they had not decided it. The question which they

LIMITED COMPANY-WINDING UP-PETITION BY COMPANY-CONSENSUS OF then decided related to the time at which the act of bankruptcy was to have SHAREHOLDERS -COMPANIES Act, 1862, s. 91.-In the case of In re The taken place. The

present question was a new one, and had never yet been Central Tynaad Gold Mining Company (Limited), before North, J., sitting as decided. Bhert, L.J., said that the argument for the respondent involved Vacation Judge, on the 16th inst., a petition was presented by the company for reading the latter words of section 94 as "notice of an act of bankruptcy a winding-up order. It appeared that the company was iocorporated in May

, available for the adjudication actually made." But the Legislature had 1881, with a capital of £100,000 in 100,000 shares of $1 each, for the purpose omitted in this section the very article "the" which was necessary to support of acquiring and working gold mines in Southern India. New directors had that argument. If the omission had made the section absord for the pur- been recently appointed, and by the allegations in the petition it appeared that poses of business, it might have been the duty of the court to imply the word. they had ascertained that it was impossible to saccessfully work the property But when the omission made the provision sensible and applicable to all acts

of the company, and that under the circumstances could not carry out its of bankruptcy, the proper inforence was that the word was left out designedly undertaking, and that the company was in fact commercially iosolvent, and for the purpose of including acts of bankruptcy arising from default in com.

the only prospect of recovering any money for its shareholders was by means plying with a debtor's summons. No doubt such an act of bankruptcy could of a winding up. The winding up was opposed by a large number of contri. berelied on for the purpose of supporting a hostile petition only by the creditor butories and creditors, who submitted that the petition must be treated as a who had issued the summons. But it would be a strange thing if a man, petition by the directors and not as a petition by the company, and that it who had notice of an act of bankruptcy committed by his debtor by dis- should be ordered to stand over for the purpose of enabling the view of the obedience to a debtor's summons, could enter into a valid transaction with general body of shareholders to bs ascertained. Norti, J., said that the him, and yet that he could not do so if he had notice of any other act of statements of the persons who had been appointed now directors should be paid bankruptcy committed by him. The business necessity showed what was

attention to. He was satisfied from a perusal of the petition that the winding, the meaning of the Legislature in leaving out the definite article in section up order prayed for should be granted. There would be the usual order as to 94. COTTON, L.J., said that, taking the words "available for adjudication

costs.-SOLICITORS, Snell, Son, & Greenip; J. Holmes ;'J. Vernon Musgrave; in their widest sense, there would be no limit at all. Bat that would be un.

Beall & Co.; Sheffield & Co. reasonable. It could not be meant that notice of an act of bankruptcy com. mitted ten years before would do. There must be some limit, and the natural

INJUNCTION-TRADE-MARK- :-BOTTLES INDELIBLY IMPRESSED.-In the case limit would be one of time ; that is, if the creditor had no notice of an act

of Allen v. Richards, also before North, J., on the 16th inst., a motion was of bankruptoy, which at the time of the making of the adjudication would made by the plaintiff

, a vendor and manafacturer of mineral and aerated have been available for making an adjudication, he was protected ; if he had waters, for an interim injanotion to restrain the defendant, a keeper of a notice, he was not protected. It was said that the court was precluded from beer-shop, from selling ginger beer not manufactared by the plaintiff in coming to this conclusion by reason of what was said in Ex parte Crosbie ; bottles stamped or marked with the plaintiff's name or registered tradebut there the court was dealing only with the question of the time at which mark. The bottles in question were bought at second-hand by the defendant, the act must have been committed, not with the question wbich arose on the present occasion.-SOLICITORS, Harper g Battcock ; Ashurst, Morris, & label bearing his own name. The defendant contended that the plaintiff

who filled them with his own ginger beer and labelled them with an adhesive Co.

had parted with the whole property in the bottles and also denied any

fraudulent uger. The plaintiff relied on the decision of Maling, V.C., in a INJUNCTION PUBLIC Body-NUISANCE-UNDERTAKING.—In the case of similar case : Rose v. Loftus (47 L. J. Ch. 576, 27 W. R. Dig. 242). NORTH, Selous v. The Wimbledon Local Board of Health, before Chitty, J., on the 7th J., said that if the defendant obose to buy second-hand boteles bearing á inst., a motion was made by the owner and occupier of a private house and trade name and filled them with the same liquid as the owner of the name grounds for an injunction to restrain the local board from depositing on land was in the habit of filling them with, the defendant was not in a position to adjacent to that of the plaintiffs', and dischargiog into the river Wandle, resist an injunction if applied for. The affixing of the defendant's own label sewage matter.

The plaintiffs case was that an intolerable puisance of a did not affect the question, for the label might get removed in a variety of most injurious character was caused by the local boar! depositing sewage in likely ways-for instance, if the bottle were planged in ice. If the label an uppurified state on an adjacent sewage farm belonging to the board, and under snoh ciroumstanoes were to come off, there would be nothing to from thence discharging it into the river, which bordered on the plaintiffs' prevent the public from believing that they were purchasing, in the bottles property. Chitty, J., said that the nuisance, if any, appeared to bave been stamped with the plaintiff's name, ginger beer maonfactored by the in existence some considerable time before the action was commenced, and the plaintiff. The injanction must, therefore, be granted. -SOLICITORS, David. defendants had almost made out a case for the injunction being refused on the

son 8. Morriss ; Charles Mallam, for T. P. G. Mallam, Oxford. ground of delay. It was to be borne in mind that the defendants were a public body, having important and onerous duties to discharge in the interest of the public generally, whilst the plaintiffs were private persons. It was, no PRACTICE-LIMITED COMPANY-WINDING UP-PETITIONER OUTSIDE JURISdoubt, true that a distinction of this kind in no way impeded the court from DICTION-SECURITY FOR Costs-SIMULTANEOUS ADVERTISEMENT OF PETITIONS. interfering in cases where these duties were not properly discharged in - In the case of In re The Carta Para Gold Mining Company, also before accordance with the law; but the court was, nevertheless, slow to grant an North, J., on the 16th inst., two petitions were presented for the winding up injunction in a case like the present against a public body if the injunction of the company, one by a shareholder, and the other by the directors of the eought for was in any way likely to operate in breeding pestilence and causing company. Objection was taken to the shareholder's petition on the ground

that public calamits. The plaintiffs, no doubt, said that the paisance complained the petitioner, although addressing from

a London club, was resident in Scotof was injurious to their personal health, but the plaintiffs had their remedy land, and it was contended that, as he was outside the jurisdiction of the court, in their own hands. They could leave the

scene of the puisance, possibly at he ought to give security for costs. It also appeared that, although both peti serious personal inconvenience; but then, if the action should result in their tions were advertised in the same number of the London Gazette, the directors, favonr, they would be entitled to adequate compensation. His lordship's petition was presented on August 3, and the shareholder's on August 4. NORTH, judgment was that, upon the evidence as taken together with the balance of 5., overruled the objection on the ground that it was too late to take it at the convenience and inconvenience, the present case was not one in wbich the hearing, and made a winding-ap order on both petitions, the carriage of the court would be willing to interfere by granting an interim injunction if an order to be given to the petitioners in the directors' petition, such petition undertaking was offered by the defendants. With respect to the evidence, being entitled to priority as having been the first presented. --SOLICITORS, there was the usual conflict. This was easily accounted for. Those who J. Vernon Musgrave ; Beall; E. Limber ; S. H. Behrend, went to smell, smelt offensive smells ; those who went with the wish not to emell, smelt none, the reason being that, when the mind was set in a particular direction, senses were apt to follow the mind, and thus a conflict of testimony PUBLIC COMPANY-CONTEMPT OF COURT-BREACH OF INJUNCTIONeasily arose, although the statements of witnesses were made in perfect SEQUESTRATION.- In the case of The Attorney-General y. The South-Eastern honesty. The whole case was one which could be better decided at the trial and The Submarine Continental Railway Companies, also before North, J., of the action. He should, therefore, upon the defendants giving an under- on the 16th inst., a motion was made that a commission of sequestration taking to cleanse out the sewage-carriers forthwith in the most approved might issue against the

personal estate and rents and profits of the defendants

, manner, so as not to create during such cleansing any nuisance, make no order on the ground of disobedience to an injunction granted on the 5th of July except that costs of the motion be costs in the action.-SOLICITORS, Learoyd last by Kay, J., restraining the defendants until the trial of the action from f Co.; W. H. Whitfield; Tibbitts & Son.

further proceeding with the excavations under the bed of the sea between Folkestone and Dover, in connection with the Channel Tuonel works, beyond ordinary low-water mark, without the consent of the Board of Trade. The

order referred to enabled the defendants, subject to the supervision of the The number of failures in England and Wales gazetted during the week end. Board of Trade, to execute any works wbich might be necessary for the pur. ing Saturday, August 12 was 180. The number in the corresponding week

poses of last year was 229, showing a decrease of 49, being a net decrease in 1882, inspection was made on behalf of the Board of Trade, when it was found that

draining and ventilating the tunnel. On the 17th of Joly last an to date, of 593.

the boring had been carried 600 yards beyond the low-water mark, and from The number of bills of sale published in England and Wales for the week the report made by Colonel Yolland it appeared that the works had been ending August 12 was 814. The number in the corresponding week of last carried seventy-two yards further since the date of the order of Kay, J.,, bat year was 960, showing a decrease of 146, being a net decrease in 1882, to the defendants only admitted having carried the works a distance of thirty. date, of 1,143. The number published in Ireland for the same week waj 23. two yards since that order. NORTH, J., upon it being stated by the The number in the corresponding week of last year was

36, showing a decrease Attorney-General that there was no desire to proceed to extremities with the of 13, being a net

decrease in® 1882, to date, of 269, - Kemp's Mercantile defendants, but only to protect the rights of the Crown and to uphold the Gazette,

order of the court, said that the defendants bad, 80 far as they admitted

« PreviousContinue »